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Dau Dayal and anr. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal;Intellectual Property Rights
CourtAllahabad High Court
Decided On
Case NumberCriminal Revn. Nos. 1600 of 1956 and 133 and 145 of 1957
Judge
Reported inAIR1959All45
ActsMerchandise Marks Act, 1889 - Sections 14 and 15; Code of Criminal Procedure (CrPC) , 1898 - Sections 145 and 154; Code of Civil Procedure (CPC) , 1908
AppellantDau Dayal and anr.
RespondentState
Appellant AdvocateMakundlal Agarwala and ;J.N. Agarwala, Advs.
Respondent AdvocateShambhu Prasad, Adv. and ;Government Adv.
DispositionRevision dismissed
Excerpt:
.....marks act, 1889 - proceeding under act commences when prosecutor moves court of law against accused or with issue of process by court - held, prosecution commences with the institution of complaint or lodging of the information with the court. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under..........year had elapsed between the first discovery of the offence and the issue of process against the accused. the prosecution within the meaning of this section was therefore commenced according to the learned counsel after the expiry of one year after the first discovery of the offence. 4. learned counsel for the applicants relied on gopal marwari v. emperor air 1943 pat 245 (sb) (a). in this case it was laid down that proceedings commence only when an accused person is made a party before the court. reliance in this connection was placed also on r. r. chart v. state of uttar pradesh : 1951crilj775 , in which this ruling was approved. learned counsel for the applicants also cited a number of cases relating to malicious prosecution by way of analogy, vide, sheik meeran saib v. ratnavelu.....
Judgment:
ORDER

N.U. Beg, J.

1. All these four criminal revisions have been connected together as they raise a common question of law. The applicants in all these four revisions were arrayed as accused in complaints filed by various parties under Sections 482, 483, 485, 486 and 420 I.P.C.

2. So far as Sections 482, 483, 485 and 486 are concerned, the prosecution of the accused under those sections is governed by Section 15 of the Indian Merchandise Marks Act, 1889, (Act No. IV of 1889). On the basis of Section 15 of this Act, it was argued on behalf of the applicants that the present complaints were barred by limitation. Section 15 of the said Act provides as follows :

'15 No such prosecution as is mentioned in the last foregoing section shall be commenced after the expiration of three years next after the .commission of the offence, or one year after thefirst discovery thereof by the prosecutor, whichever expiration first happens.'

3. In the present case it was argued on behalf of the applicants that more than one year had elapsed between the first discovery of the offence and the issue of process against the accused. The prosecution within the meaning of this section was therefore commenced according to the learned counsel after the expiry of one year after the first discovery of the offence.

4. Learned counsel for the applicants relied on Gopal Marwari v. Emperor AIR 1943 Pat 245 (SB) (A). In this case it was laid down that proceedings commence only when an accused person is made a party before the court. Reliance in this connection was placed also on R. R. Chart v. State of Uttar Pradesh : 1951CriLJ775 , in which this ruling was approved. Learned counsel for the applicants also cited a number of cases relating to malicious prosecution by way of analogy, vide, Sheik Meeran Saib v. Ratnavelu Mudaly AIR 1915 Mad 128 (C) and Golap Jan v. Bholanath Khettry ILR 38 Cal 880 (D). These cases related to suits for damages for malicious prosecution. In these cases, it was held that for purposes of a suit for damages for malicious prosecution, the prosecution cannot be said to commence unless process is issued to the accused.

On the other hand, on behalf of the State it was argued that AIR 1943 Pat 245 (A) and : 1951CriLJ775 have no application to the facts of the present case. In these cases all that was determined was the definition of the meaning of the word 'cognisance' as used in Section 190, Cr. P. C. and it was held that before a Magistrate can be said to have taken cognizance of an offence, he must have applied his mind to the offence for the purpose of proceeding in a particular way as indicated in the subsequent provisions of the Chapter in which that section was contained. 'Cognizance' according to these cases means the application of mind by a Magistrate for the purpose of taking judicial proceedings in the case. In Section 15 of the Indian Merchandise Marks Act, 1889, the words used do not relate to the taking of judicial proceedings, but relate to the commencement of prosecution. The prosecution of a case commences as soon as a court of law is moved to take action against the accused.

5. Further, it was argued that the analogy of civil claims for damages for malicious prosecution cannot be applied to a criminal case of the present type, because, there is no question of damages in it. In a case of malicious prosecution, the court has to determine the damages that have accrued to the plaintiff as a result of the action of the defendant, and no damages can be said to have accrued to him unless a process has been issued to him. In other words, in a civil suit for damages, the claim arises as a result of bilateral considerations viz. malicious prosecution by one party and damages accruing to the other party as a result of it. Unless, therefore, the notice is issued to him, damages cannot be said to have accrued to him. On the other hand, in Section 15 of the Merchandise Marks Act it is the unilateral action of the prosecutor that is to be considered for the purpose of computing limitation against him. It was, therefore, argued that these cases have no application to a case where the court has to consider the applicability of Section 15 of the Indian Merchandise Marks Act, 1889.

6. Learned counsel for the applicants also relied on Section 106 of the Factories Act and argued that where the Legislature wanted to make the filing of the complnint the relevant date for determining the validity of proceedings, it expressly used thesewords. On the other hand, it was argued on behalf of the State that in Section 106 of the Factories Act a reference was made to the filing of the complaint, because, under Section 106 of the said Act a complaint had to be filed by the Inspector and sanction of the District Magistrate was necessary for the same. There is no such limitation imposed under Section 15 of the Indian Merchandise Marks Act.

On behalf of the State, it was strenuously argued that the expression 'commencement of prosecution under Section 15 of the Indian Merchandise Marks Act' must relate to the action of the prosecutor alone. The purpose of this section was to see that the prosecutor is diligent in filing his complaint. If he has filed his complaint within the period of limitation prescribed therein, he should not be blamed if the issue of process is delayed as a result of the action of the court. Where the complainant has clone all that lay in his power to institute a legal proceeding against the accused it would be unreasonable to interpret this section in such a fashion as to make his action barred by limitation, because the court did not apply its mind to the matter until a subsequent stage. No party can be penalised for the action of the court. The rule embodied in Section 15 is merely a rule of limitation and under it, a period of limitation is imposed for the action to be taken by a party, hence the more reasonable and proper interpretation of the said section would be to interpret it with reference to the action of that party alone.

7. I am provisionally of opinion that the arguments advanced on behalf of the State in this regard are not without force. The question, however, does not appear to be free from difficulty. But in view of the importance of the question, learned counsel appearing for both the parties have pray-ed that the question be referred to a Division Bench. They have further submitted that the question is likely to arise in a number of cases in future and an authoritative decision by a Bench of this Court, is, therefore, necessary to provide guidance in this regard. I would, accordingly, refer the following question to a Bench :

'Does the prosecution within the meaning of the expression as used in Section 15 of the Indian Merchandise Marks Act (Act IV of 1889) commence when the prosecutor moves a court of law for action against an accused or when the process is actually issued by the court against him?'

8. The file of this case may be laid before the Hon'ble the Chief Justice for the above purpose.

OPINION OF THE DIVISION BENCH

B.R. James, J.

9. Our brother Beg has referred the following question to a Division Bench, and it has been laid before us for answers:

'Does the prosecution within the meaning ot the expression as used in Section 15 of the Indian Merchandise Marks Act (Act IV of 1889) commence when the prosecutor moves a Court of law for action against an accused or when the process is actually issued by the Court against him.'

We have little difficulty in holding that prosecution is commenced as soon as the prosecutor moves the Court for action against the accused person, and is independent of the time of the actual issue of process against him. We proceed to briefly record our reasons for this view.

10. First, the word 'prosecution' has not been defined in the Indian Merchandise Marks Act, 1889 hence other avenues have to be explored in understanding what it means. Halsbury in his 'Laws of England' states that 'a prosecution is commenc-ed when an information is laid before a Justice. Wharton in his 'Law Lexicon' defines a prosecution as 'a proceeding either by way of indictment or information in the criminal Courts in order to put an offender upon his trial.' Stroud in his-Judicial Dictionary, citing an English decision observes that 'a man prosecutes a charge who lays an information before a Magistrate accusing of the offence.' These opinions of these distinguished authorities leave no room for doubt that in judicial proceedings a prosecution commences with the lodging of a complaint.

11. Second, there are the fundamental principles on which the law of limitation is founded. No doubt this law has been termed a statute of repose, ensuring that after a fixed period the right and title of the possessor are not called into question. Nevertheless, there is its complementary aspect which is of no less moment; the law comes to the assistance of the vigilant, so that the law of limitation obliges people to be diligent in the as-sertion of their rights but penalises those who choose to sleep over them. If the argument of the accused applicants of the present case were to be accepted, the prosecutor, however diligent he might have been in laying his information before the Court stands in danger of losing his rights if the Court itself fails to act with due diligence in issuing process within the appointed time. We should bear in mind that there may be a variety of legitimate reasons why the Magistrate is not able to issue process in time. Are we then to assume that although the prosecutor has been alive to his rights and duties and has laid his information before the Magistrate in good time, but the Magistrate has failed to carry out his own part within time, the prosecutor must lose his case? Any such interpretation of Section 15 of the Act would be so contrary to the rules of natural justice that we decline to believe that the legislature could ever have intended the commencement of the prosecution to be equated with the issue of process by the Court.

12. Third, a reading of Sections 14 and 15 of the Act supports the same view. If the commencement of the prosecution lies exclusively with the Court -- as the accused applicants contend before us -- it will be incongruous for the prosecutor to have to pay costs to the defendant or to receive costs from him. Indeed, these two sections appear to confer rights or impose obligations on the parties independently of the Court.

13. Fourth, there is the authority of the Supreme Court in M. P. Sharma v. Satish Chandra : 1978(2)ELT287(SC) , and of this Court in Sube-dar v. State : AIR1957All396 , that a person becomes an accused as soon as a complaint is filed against him, and not, we might emphasise, when the Court has issued process against him. No doubt these views were expressed on a consideration of the terms of Article 20 cl. (3) of the Constitution, nevertheless we have been unable to see why they should not apply with equal force to the proper interpretation of Section 15 of the Act.

14. Learned counsel for the parties have not been able to produce before us any authority dealing specifically with the point at issue, but have cited judgments by way of analogy. Arguments from analogy, we do not doubt, are always admissible, and are sometimes useful, nevertheless it ought to be borne in mind that where the Courts are dealing with positive enactments of statute, reasons founded on analogies are scarcely applicable. For this reason we have found ourselves unable to derive much benefit from the cases of AIR 1943 Pat 245 (A), : 1951CriLJ775 and ILR 38 Cal880 (D) referred to on behalf of the applicants. In our opinion these cases should be kept confined to the particular circumstances in which they arose and to the questions which they decided. Nor is the analogy of an action for malicious prosecution of any avail. Quite obviously the right of the plaintiff to receive damages accrues only when harm has been caused to him, and this cannot be until he has been made a party to the proceedings by the issue of process against him by the criminal Court.

15. We have also been referred to Section 145 of the Code of Criminal Procedure, and it has been argued that such proceedings are an instance where the proceedings become null and void if the Magistrate's preliminary order is not passed within the period fixed by the statute, and that if the Magistrate is not diligent in passing his order within the appointed time the complainant stands in danger oi grave injustice. In our opinion the argument is based on a complete misconception of the fundamental object of proceedings under Section 145 Cr. P. C. The fundamental object of such proceedings is the preservation of the public peace, not the en-forcement of private rights, while the law correctly assumes that it is the Magistrate who is in the best position to decide whether or not any danger to the public peace exists. Consequently Section 145 of the Code itself, unlike Section 15 of the Indian Merchandise Marks Act, leaves the initiative exclusively with the Magistrate. The analogy of Section 145 is thus seen to fail.

16. We might here point out that a word or phrase does not necessarily have the same meaning in all statutory provisions; indeed, it may even be used in different senses in one and the same statute. In this connection the following passage from the judgment of this Bench in Ram Jeet v. State : AIR1958All439 might be quoted with profit:

'If any word or expression is found defined in the statute it must be given that meaning wherever it occurs in that statute, and in this matter, there can be no compromise. But in S. V. Parulekar v. District Magistrate, Thana : 1957CriLJ5 their Lordships of the Supreme Court affirmed the views of Craies and Maxwell that although it is reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act, the presumption is not of much weight and that if sufficient reason can be assigned the same word or phrase may be used in different senses in the same statute, arid even in the same section.'

17. Holding therefore that the prosecution, contemplated by Section 15 of the Act commences with the institution of the complaint or the lodging of the information with the Court and not with the issue of process by the latter, we direct the record to be returned to our brother Beg.

FINAL


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